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Supervised Release and the Erosion of Due Process Protection

by Benjamin Tschirhart

There is an abundance of ways to become involved in the U.S. carceral state. Going in is very easy, but getting out, now, that’s a different story. In fact, for many people convicted of a crime, their involvement with the criminal justice system will be lifelong, even if they never reoffend. Although it is touted as a ‘rehabilitative’ practice, the institution of supervised release is the most pernicious, inescapable scheme currently in use within the justice system. Though it claims to assist with reentry to society, the officials and agents with U.S. Probation & Pretrial Services work to keep people ensnared in the vicious cycle of arrest, incarceration, control, and despair. It just might be unconstitutional, too.

Parole and Probation

Since the 1800s, there have been parole systems in place in most U.S. states. In 1910, the federal government implemented a similar system based on state parole: any prisoner who had finished at least one third of his sentence was eligible for early release. If he had “observed the rules of [the] institution” and his freedom would not be “incompatible with the welfare of society,” Parole Act, ch. 387, § 3, 36 Stat. 819 (1910), the parole board had broad latitude in deciding whether to release him. While the offender would be released from prison, his freedom would be conditional; technically, he was considered still to be in custody of the executive branch. This conditional freedom could be revoked at any time.

The parolee did not enjoy the full constitutional protections of the Sixth Amendment during parole proceedings (hearings or revocation) since parole itself was an act of “legislative grace” and not a right. Still, the arrangement did create a scheme that incentivized the good behavior of a prisoner. Time which would otherwise have been spent behind bars could be exchanged for freedom in the community, provided the prisoner behaved well and sustained this good behavior after parole.

Courts established that parole revocation required limited due process, since the revocation entailed a “grievous loss” of freedom. The requirements included (1) notice of the violation, (2) the opportunity to be heard in person, (3) the right to present witnesses and confront adverse witnesses, (4) a “neutral and detached” hearing body, and (5) a written statement by fact finders on the reason for revocation. These rules were later absorbed into the Federal Rules of Criminal Procedure for revocation of probation and supervised release.

Probation began with similar goals but with a few significant distinctions. While it was federally adopted with passage of the Probation Statute in 1925, the practice of giving a sentence and “suspending” it — pending the good behavior of the sentenced person — had been in use for years already by that time.

While probation, like parole, confers freedom predicated on good behavior, probation also tends to come with “conditions” that extend beyond simply not breaking the law. Failure to comply with these extra conditions can lead to revocation of probation and incarceration or return to prison. Subtle differences aside, the nature of probation is fundamentally similar to parole and may represent a sort of conceptual step between parole and supervised release.

How Supervision Works

Where both parole and probation involve probative freedom conditioned on good behavior, supervised release (or just “supervision”) cannot start until the sentence has been served. The early 1980s saw criticism of the federal parole system for causing widely disparate sentences of indeterminate length. Under the Sentencing Reform Act of 1984 (“SRA”), supervision was created to follow — rather than replace — imprisonment. “The term of supervised release would be a separate part of the defendant’s sentence, rather than being the end of the term of imprisonment.” S. Rep. No. 98-225 at 123 (1983). The purpose of supervision was meant to “afford rehabilitation rather than impose punishment.” Id. Judges were instructed to consider “deterrence and rehabilitation” rather than retribution in determining whether to give a person a term of supervision following their term of incarceration and for how long. Id.

Originally, the SRA provided no mechanism for the revocation of supervised release; violation of the conditions of supervision was to be treated as criminal contempt. In 1986, however, Congress passed the Anti-Drug Abuse Act (“ADAA”), a reactionary attempt to discourage drug use with increased sentences for certain drug offenses. Additionally, the ADAA made a “technical amendment” to the SRA: it authorized courts to revoke a term of supervised release and impose a new sentence of incarceration if the court found by a preponderance of the evidence that the person had violated a condition of their release.

This legislation put in place the revocation mechanism of probation, which the crafters of the SRA had carefully avoided using when designing supervised release. This is the crux of the matter. If some probationary period replaces a certain term of imprisonment, it can be revoked, forcing the person to complete the sentence in prison.

When supervision is “revoked,” it leads to an entirely new sentence of imprisonment deriving from new transgressive behavior — the original sentence already having been served. The difference being, under supervision, violation of a relatively trivial rule can lead to a term of incarceration longer than the original sentence.

A revocation proceeding involves the formal accusation of violation (usually by a probation officer or U.S. Attorney) of the terms of supervision. The defendant must enter a plea, and then guilt is determined at a hearing.

Constitutional Conflicts

Thus, for constitutional purposes, a revocation hearing is indistinguishable from a criminal prosecution. “There are no meaningful differences between ‘criminal prosecutions’ and supervised release violation proceedings for purposes of the Sixth Amendment.” Id.

Yet, the decisions of courts to date have failed to recognize this fact and, therefore, have failed to assign the appropriate right to indictment which is guaranteed by the Fifth Amendment to anyone who faces an “infamous punishment” if convicted of a crime. The Fifth Amendment states: “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.” It is noteworthy that the necessary prerequisites for indictment — i.e., being “held to answer” for a crime — are not strictly defined. “Infamous punishment,” however, has a well-settled definition. According to the Supreme Court, they include “sentences of imprisonment in a penitentiary and sentences to hard labor. They do not include ordinary misdemeanor sentences of no more than a year in jail.” United States v. Smith, 982 F.2d 757 (2d Cir. 1992).

Federal law provides that any sentence of a year or more to be served in a penitentiary. Thus, any federal offense punishable by more than a year in a penitentiary ought to trigger the right to indictment. This definition encompasses the vast majority of revocation proceedings for supervised release. The U.S. Sentencing Commission’s first report on supervised release violations was published in July 2020 and contained data from more than 100,000 revocation hearings in federal district courts between 2013 and 2017. The report showed that federal judges give about 8,200 years of imprisonment annually during revocation proceedings.

Judges are allowed to impose between two and five years of imprisonment for violation of a condition of supervised release. This qualifies almost without exception as an “infamous punishment” as defined by the Fifth Amendment. Although courts have argued that revocation proceedings are not “criminal prosecutions” (which is still a dubious assertion), the language of the Fifth Amendment specifically protects “a person” and not “”the accused.” This alone ought to be sufficient to demonstrate the right to indictment of any person who is subject to revocation proceedings.

Another theory is that the indictment which accompanied the original conviction is also considered to support the revocation proceeding. Courts have held that any term of imprisonment arising from revocation of supervision is authorized by the original sentence. And yet, the explicit purpose of an indictment is to allow an accused person to confront and respond to the allegations of misconduct which underlie the accusation. But a violation of a supervisory condition is obviously not contained within the conduct alleged in the original criminal complaint. “Thus, the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with [conduct] which the grand jury did not charge.” Stirone v. United States, 361 U.S. 212, 218 (1960).  

Due Process End-Run

The Constitution protects against double jeopardy – that is, multiple prosecutions for the same offense. A plain language reading of the law strongly suggests that additional imprisonment arising from revocation of supervision cannot legally be attributed to the original offense. So, if a new indictment is not necessary because the original indictment covers the misconduct which triggers the revocation, then any additional punishment must violate the prohibition on double jeopardy. Congress in the Sentencing Reform Act forbade the federal courts from “modifying a term of imprisonment once it has been imposed…,” meaning that either the additional prison time violates the prohibition on post-facto sentence modification, or it violates the double jeopardy prohibition.

It would seem as though the indictment problem is the least of the concerns facing the institution of supervision. In United States v. Haymond, 139 S. Ct. 2369 (2019) (plurality holding application of § 3583(k)’s mandatory minimum is unconstitutional because it violates defendant’s right to trial by jury under the Fifth and Sixth Amendments),the Supreme Court examined only a specific facet of supervised release. In Haymond, defendant had violated the condition of his supervision which forbade him to possess child pornography. Since this was also a per se federal offense under 18 U.S.C. §3583(k), the district court simply revoked Haymond’s supervised release and sentenced him to an additional five years in prison. If Haymond had received a jury trial, he could have faced 10-20 years if convicted beyond a reasonable doubt.

But why bother with an old-fashioned jury trial for a new crime when a quick-and-easy “supervised release revocation hearing” before a judge carries a penalty of five years to life? So instead, a judge acting alone as fact finder sentenced him to an expedient five years under the “preponderance of the evidence” standard. The Haymond Court acknowledged the critical difference between §3583(k) and traditional parole and probation practices. Where parole and probation violations traditionally exposed a defendant only to the remaining prison term authorized for his crime of conviction, §3583(k) exposes a defendant to an additional mandatory minimum prison term beyond that authorized by the jury’s verdict – all based on facts found by a judge by a mere preponderance of the evidence. Id.

In Haymond, Justice Gorsuch explained “Our precedents … have repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution a “sentencing enhancement.” Calling part of a criminal prosecution a “sentence modification” imposed at a “post judgment sentence administration proceeding” can fare no better, according to the Court. As this Court has repeatedly explained, any “increase in a defendant’s authorized punishment contingent on the finding of a fact” requires a jury and proof beyond a reasonable doubt “no matter what the government chooses to call the exercise.”

Yet, this is precisely the sort of obfuscator wordplay used daily by the government to justify handing out thousands of years of incarceration beyond what is allowed by the statutory guidelines. The result is the manifestation of the “Framers’ fears that the jury right could be lost not only by gross denial, but by erosion.” Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Apprendi Courtopined on the perverse outcomes permitted within such a scenario: Congress could require anyone convicted of even a modest crime to serve a sentence of supervised release for the rest of his life. At that point, a judge could try and convict him of any violation of the terms of his release under a preponderance of the evidence standard and then sentence him to pretty much any term of imprisonment.

The Supreme Court concluded that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi. The decision was heavily divided though and stopped short of making meaningful change to the current supervision model.

Necessary Reform

In Morrisey v. Brewer, 408 U.S. 471 (1972), the Supreme Court concluded that a parolee is still technically in custody and thus not entitled to the “full panoply” of constitutional protections which adhere during criminal prosecution. Nevertheless, since the revocation of parole entails the “grievous loss” of conditional liberty, it requires certain due process protections. But under Morrissey, the defendant enjoyed contractual liberty in place of incarceration. It would be ridiculous, the Court reasoned, to compel the government to repeat the prosecution process just to impose the same sentence over again.

But supervision is different. Whether its function is rehabilitation or punishment, supervised release is distinct from the sentence of incarceration. It cannot be enacted until the sentence of imprisonment has been served. A sentence of supervised release does not allow a defendant the opportunity to gain conditional liberty in exchange for good behavior. Because of this, a revocation of supervision amounts to nothing less than new punishment for new transgressive conduct. Is it possible that courts intend that a single criminal conviction should have the potential to dispense with the constitutional right to due process protections in any future prosecution? We should hope not.

The present incarnation of post-carceral supervision is a Frankenstein’s monster, cobbled together from rotten bits of multiple aging modalities. The result is criminal prosecution (by any other name) and freedom that isn’t truly free. Something of this arrangement might be salvaged if the Supreme Court can find the wherewithal to sever the corrupted organs where they are currently joined and graft something more constitutionally appropriate in place. We are presently being divested of our constitutional protections by degrees, and we allow it because those being disenfranchised (at the moment) are considered to be “offenders” and thus not deserving of the full protections of the Constitution. The rights of criminals do not evoke the sympathy or outrage of society. But it would serve us well to remember that historically whatever can be legally done to the guilty is often eventually done to the innocent as well. This is an idea that shaped the concept of constitutional protections, and we forget it at our peril.

A proper and acceptable reform would see anyone subject to a revocation proceeding covered by the full panoply of constitutional due process protections which attach to criminal prosecutions or else a limit to the ability of prosecutors and judges to hand down indeterminate and interminable sentences in pseudo-legal “post sentencing” hearings.

The history of post-carceral criminal proceedings illuminates the inadequacy of the current model. Justice Alito, writing the dissent in Haymond,grasped the seriousness of the implications: “if every supervised-release revocation proceeding is a criminal prosecution, as the plurality suggests, the whole concept of supervised release will come crashing down.”

Perhaps it should.

Sources: Underhill, S., Virginia Law Review, “Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution;” Foster, M., Congressional Research Service – Which Punishment Fits Which Crime? Supreme Court to Consider Whether Portion of Supervised Release Statute is Unconstitutional;; criminal law news

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